The Volokh Conspiracy

"Californians Barely Reject Gay Marriage,"

reads this L.A. Times headline (with "narrowly" instead of "barely" on the Web version). The opening paragraph reads, "By bare majorities, Californians reject the state Supreme Court's decision to allow same-sex marriages and back a proposed constitutional amendment aimed at the November ballot that would outlaw such unions, a Los Angeles Times/KTLA Poll has found."

It's only in paragraph 6 that reads learn that the amendment "was leading 54% to 35% among registered voters." It's true, as the paragraph says, that "ballot measures on controversial topics often lose support during the course of a campaign" and therefore "strategists typically want to start out well above the 50% support level." But despite this 54%-35% doesn't strike me as "barely"; likewise, the 52%-41% disapproval of the California Supreme Court decision doesn't seem likely "barely reject[ing]" to me.

So while 52% and 54% are indeed not much above 50%, they are much more than barely or narrowly above 41% and 35%. Formulating both the headline and the opening paragraph in terms of "barely" or "narrowly" and "bare majorities," without noting the large margins, strikes me as not the best way of presenting the data to the reader.

I should stress, by the way, that my point here is about the coverage of the poll, not about the likely November results. I suspect that the proposed amendment banning recognition of same-sex marriages will pass (assuming, as seems likely, that it will get on the ballot); but now is not November, and the voters haven't seen the campaigns on both sides. That the view "As long as two people are in love and are committed to each other, it doesn't matter if they are a same-sex couple or a heterosexual couple" polls at 59%-35% in favor suggests that public opinion may well be quite movable, if the issue is framed in that way.

Armen (mail) (www):
Wait how are 52 and 54% not bare majorities? The story doesn't say by "bare" or "narrow" margins. It says majorities. So what's the beef?
5.23.2008 3:48pm
Alex Denmark (mail):
"bare majorities" = borderline, but I'll let it pass

"barely reject" = completely ludicrous.
5.23.2008 3:51pm
Dave N (mail):
Armen,

The lead paragraph of the story (putting aside the headline) reads:
By bare majorities, Californians reject the state Supreme Court's decision to allow same-sex marriages and back a proposed constitutional amendment aimed at the November ballot that would outlaw such unions, a Los Angeles Times/KTLA Poll has found.
Is that more or less misleading than my rewrite of the same first paragraph, which I would suggest has a completely different connotation?
By an almost twenty point margin, Californians reject the state Supreme Court's decision to allow same-sex marriages and back a proposed constitutional amendment aimed at the November ballot that would outlaw such unions, a Los Angeles Times/KTLA Poll has found.
But of course, bias in the media is merely a figment of conservatives' imaginations.
5.23.2008 4:00pm
Eugene Volokh (www):
Armen: "Barely reject" strikes me as strongly implying a bare margin between reject and accept, not a 52%-41% margin and especially not a 54%-35% margin.
5.23.2008 4:04pm
Dale Carpenter (mail):
In fact, things are probably worse for ssm advocates than this polls suggests. If memory serves, in the state amendment battles so far, ssm fares worse by an average of about 10% in polls taken immediately before election day than it does in the balloting itself. If that's right, and if it holds in California, ssm advocates are in trouble unless at least 55% of voters in pre-election polls oppose the amendment.

I can only speculate about the reason for the disparity between pre-election polls taken immediately before an election and actual elction day results. Other than bias in the polling question, two things come to mind. One is that people are reluctant to tell pollsters that they oppose something that has a whiff of civil rights in the popular media. The other is that intensity is higher among opponents of ssm than it is among supporters. This makes opponents of ssm more likely to vote and, when they do, more likely to reach the part of the ballot where the question is presented, rather than simply marking preferences at the top of the ballot for things like President, congressperson, Senator, etc., and then leaving the rest blank.
5.23.2008 4:05pm
Duffy Pratt (mail):
Rejection implies some sort of action. I think its sort of a category mistake to talk about the poll results in terms of rejection. Disapproval might be a better word.

Also, the article doesn't say anything about the specific wording of the polling questions. Given how slippery those words can be, its hard to say what the results of this poll actually mean.
5.23.2008 4:06pm
SteveW:
Even if it is only 51%, instead of the actual 54%, that's enough. Close counts in horseshoes and hand grenades, but not in California ballot measures. Supporters of marriage equality should be very concerned.
5.23.2008 4:09pm
Q the Enchanter (mail) (www):
I guess this means the headline is only "barely" misleading.
5.23.2008 4:19pm
b10621:
Really, what is the point of using the word "bare," if not to mislead? To my mind, this is a no-brainer.
5.23.2008 4:23pm
Armen (mail) (www):
Reread the headline, fair point EV.
5.23.2008 4:28pm
VMakarov:
Also keep in mind that for some reason polls seem to underestimate the actual results of opposition to marriage by a substantial margin.

There have been numerous examples of this. For instance in Wisconsin, pre-election polls showed that the marriage amendment in that state had fairly narrow support 52%-43%.

When it came to the actual vote, the Amendment won by almost 20 points, 59%-41%.

In Ohio, polls showed the amendment would pass with support in the low 50s. Election time, the amendment passed, 62%-38%.

I once read a spreadsheet which showed that the polls underrepresented opposition each time on this issue, I'll see if I can find it again.
5.23.2008 4:35pm
Nathan_M (mail):

Really, what is the point of using the word "bare," if not to mislead?

It makes for a more interesting headline. A majority of Californians voting against SSM wouldn't be terribly exciting, but a bare majority doing so would make for one memorable election night.
5.23.2008 4:37pm
Hal B. (mail):
I think that if people really stopped to consider the gravity of amending the Constitution (as opposed to passing a regular ballot iniative), it should give them some pause.

But, as always, the voters will be swayed by disguised hate speech and manipulative wording, and voila, hate will be enshrined in the constitution of california.
5.23.2008 4:48pm
Hal B. (mail):
In "54%-35%", the 35% doesn't matter. The point is that only "54%" feel plan to vote this way. I think that as long as you are in the low fifties, that is "bare."

The 35% is misleading because it implies a wide gap. But who cares? A measure passes based on the yes votes, not the lack of no votes.
5.23.2008 4:53pm
b10621:
On the other hand, maybe none of this matters since most people reading the L.A. Times probably know they're reading a rag.
5.23.2008 4:55pm
Dave N (mail):
Hal B,

The California Constitution is one of the easiest state constitutions to amend--a majority vote in one elecetion for either an initiative or referendum (the difference being that an initiative is placed on the ballot by gathering sufficient signatures and a referendum is often, though not always, the result of the Legislature putting an item on the ballot).

I disagree with your contention that the proposed language is "hate speech" or "manipulative." The amendment reads, in ite entirety:
SECTION I. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
SECTION 2. Article I. Section 7.5 is added to the California Constitution. to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
People of good will can disagree on the desirability of this measure. Your attempt to brand proponents as nothing more than bigots does a disservice to your cause.
5.23.2008 5:10pm
whit:
1) we need to consider that at least some of the opposition is because many people who might be willing to accept gay marriage by popular vote do not want courts inventing rights because they are trendy.

note that i support gay marriage btw.

iow, maybe more people support the amendment than are actually strongly opposed to gay marriage because at some are more concerned by judicial activism.


But, as always, the voters will be swayed by disguised hate speech and manipulative wording, and voila, hate will be enshrined in the constitution of california


2) THIS IS SUCH RHETORICAL GARBAGE. i get so tired of the misuse of the word "hate" when people oppose political ideas. i support gay marriage. i know plenty of people who don't who have exactly ZERO hate for gays. limiting marriage to one man one woman no more enshrinse hate against gays, than it does enshrine hate against polygamists.

it's a classic liberal name calling tactic. because nobody wants to be a hater, therefore people who oppose our support of gay marriage (our being defined of as supporters, not liberals) must HATE gays. they are EVUL!!! EVUL i tell you !!
5.23.2008 5:13pm
Raghav (mail) (www):
A lot of strange stuff in this poll. For instance: "Democrats and independents narrowly backed the amendment despite their support for the court action. [...] Democratic women, meanwhile, approved of both the court decision and the amendment."

I can understand opposing the amendment while opposing the court decision, based on views about the proper role of the judiciary. But why would people support the court decision but also support the amendment?

The poll also found that 18-34 year olds are the most likely to find same-sex relationships morally wrong. And it found respondents evenly split as to whether they agreed with Schwarzenegger's decision to support the ballot initiative.

All of which seems anomalous.
5.23.2008 5:28pm
wooga:
Raghav,
Your post brings up a speculative thought I had. I thought I read something (but obviously I have no evidence) that the people who were born between 1970 and 1980 have a much stronger 'conservative morality' bent than those immediately older. Post 1980 kids are then the most accepting of homosexuality (usually blamed on MTV).

The 1970-1980 births, for whatever reason, tend to run conservative. I've heard theories blaming abortion among liberals, anti-hippie rebelliousness, and (what I believe) that modern youth are becoming increasingly conservative - with Bush hatred depressing that trend among the current 18-24 year old crop.

Now, someone will probably prove me completely wrong and make me feel really stupid for this speculation.
5.23.2008 6:22pm
Raghav (mail) (www):
wooga: The reason I flagged it as anomalous was because it clashes so much with other polling data on same-sex marriage, including data from California. The latest Field Poll found that 58% of people born in the 1980's supported same-sex marriage, a figure that declined monotonically as you go back by decade.
5.23.2008 6:43pm
BruceM (mail) (www):
Isn't it great to have a plebiscite where the majority whim controls, irrespective of basic principles of human rights and fundamental equality? Majority RULES!$@%#!@$! Yay for opinion polls.
5.23.2008 6:47pm
Oren:
iow, maybe more people support the amendment than are actually strongly opposed to gay marriage because at some are more concerned by judicial activism.
I would gladly vote for an amendment that actually did what you just claimed. For instance

SECTION I. Title
This measure shall be known and may be cited as the "California Voter Preferences Protection Act."
SECTION 2. Article I. Section 7.5 is added to the California Constitution. to read:
Sec. 7.5. Only the Acts of the Legislature, Popular Referendums and Voter Initiatives are empowered under this Constitution to define eligibility for marriage
5.23.2008 6:53pm
Oren:
[Aside: Please don't flame me if the amendment that I wrote doesn't do what I claimed. I'm not an expert in writing airtight legalese. The point is that one can assert that point that Whit made (the impropriety of the court declaring new rights) and correct the mistake without permanently shutting the door on gay marriage.

If the amendment as I worded it passed, gay marriage will be illegal (since pursuant to both Proposition 22 and California Family Law marriage is between a man and a woman).
5.23.2008 6:55pm
subpatre (mail):
Just before the 2006 Virginia election, polls showed 53% opposition to SSM. [Technically, it was support for a one-man, one-woman Constitutional Amendment]

The actual vote was 57% opposing SSM. This isn't party politics or 'left v right' —these were the same voters that turned out popular and incumbent Sen. Allen.

Nothing personal, but SSM is a loser at the polls that count, hence the judicial end-runs.
5.23.2008 7:46pm
jaed (mail):
Oren, one might note that in practice, the proposed initiative wouldn't "permanently shut the door on gay marriage", since a future initiative could re-amend the California constitution to permit it. (I'll admit this initiative does make it more difficult, since without it the legislature could simply change the marriage law to permit same-sex marriage. But re-amending the constitution is easy enough that I don't think passage of this initiative would decide the issue permanently.)

That being said, I do think your method of taking this policy issue out of the hands of the courts would accomplish what most people are worried about. But the problem of courts enacting public policy via ruling is a more global one than gay marriage - marriage is just the current hot-button public policy issue.
5.23.2008 8:12pm
Limebrook (mail):
Polling data from the LAT is always suspect. Their polling during the gubernatorial recall made them a laughing stock, and was the straw that made me cancel my subscription for good and all. With that, I believe the anti-SSM amendment is as good as passed, and by a huge margin.
5.23.2008 8:22pm
Dave N (mail):
BruceM,

I would rather trust a majority of the people decide an issue than have you as Emperor of the World.
5.23.2008 9:33pm
NickM (mail) (www):
There is another factor at work here in California - polling among voters whose primary language is not English is very difficult for most pollsters. Hispanic voters in CA make up a significant portion of the electorate, strongly favored Prop. 22, and were underrepresented in polling. This is likely to hold forth on the state constitutional version of Prop. 22.

Nick
5.23.2008 9:45pm
Oren:
Well jaed, I think that the gedanken-experiment of my initiative demonstrates that the chief support for this initiative isn't, as Whit claims, anti-judicial-activism but rather bread and butter anti-gay-marriage.

It at least helps to be honest about why you are doing what you are doing.
5.23.2008 10:26pm
Dave N (mail):
Oren,

I have no problem with your amendment except the first clause. If the people want to, by initiative, allow same sex marriage, it is all right by me. However, since the current statute prohibiting gay marriage was passed by popular vote, under California law, that is the only way it can be repealed--and I would oppose allowing the Legislature to subvert that part of the California initiative process.
5.23.2008 11:25pm
Anon21:
I suppose this strays rather far from the original post topic, which is the LA Times' coverage of Californians' views on the SSM amendment. But with a threshold of a bare majority of the electorate sufficing to amend it, I fail to see in what sense the California Constitution ought to be considered a constitution. Constitutions are supposed to constrain ordinary political processes in some way; they structure and channel politics into channels that their designers see as appropriate. Law-making, by legislation duly enacted by a legislature or by referendum, is supposed to be the domain of "ordinary" politics. Constitutional change, it would seem to me, should require something more.

I suppose the counter-argument would be that constitutional change in California is a decision reserved exclusively to the people, in the form of a referendum (or a constitutional convention, which I would imagine is rather rare), rather than to the legislature. But my sense of what constitutionalism means, and its primary advantage over alternatives, is that it doesn't just require some difference between the processes by which constitutional change and ordinary law making occur, but rather than it be more difficult to create constitutional change. That may not mean the onerous hurdles imposed by Article V of the U.S. Constitution, but my (limited) understanding of California politics leads me to believe that popular referenda are part of business as usual in California, and that it is not particularly difficult to get referenda to pass. To me, allowing constitutional change through such a mechanism seems to undermine one of basic principles of a constitutional system of government.
5.24.2008 12:48am
one of many:
Anon, you are confusing a feature of many constitutions (difficulty of changing) with the essential nature of what a constitution is. Simply put, a constitution is the foundational law of a body (social contract) establishing the rules and functions of that body. California, by US standards, has a very mutable constitution but that does not make it any less a constitution than the mostly) unwritten UK constitution. There is nothing wrong with disliking the ephemeral nature of the California constitution and having a preference for more permanent constitutions, but it is still a constitution.
5.24.2008 1:57am
Anon21:
one of many, I respectfully disagree. I think that an essential and defining feature of any constitution is that it limits and constrains the political process in a way that ordinary laws do not. In my view, the United Kingdom's "constitution" fulfills that role inasmuch as it establishes a set of traditions that are generally considered to be, if not legally binding, then at least venerable enough to resist modification through ordinary political processes (that is, it would require an extraordinary set of circumstances to violate UK constitutional norms). The UK constitution is functionally binding even though, to my understanding, it is generally not formally so.

In contrast, California's constitution essentially does not appear to constrain or channel political action in any effective way. Perhaps if ballot initiatives to change the California Constitution were rarer, and tended to succeed only if they addressed some issue perceived as having greater than ordinary political or governmental significance, it would be possible to argue that the constitution would be binding in fact if not in theory, similar to the situation in the UK. But under the circumstances, where amendment by referendum is commonplace and part of the ordinary political process, it does not seem to me that the California Constitution constrains in any way concrete enough to be considered a fundamental and foundational aspect of California's government.
5.24.2008 3:21am
G.F. (mail) (www):
"It's true, as the paragraph says, that "ballot measures on controversial topics often lose support during the course of a campaign"

Actually, it's NOT true, Prof. Volokh, when it comes to marriage amendment. Just the opposite is:

Naked Media Bias: LA Times and CA marriage poll

Marriage amendments typically underpoll...significantly.
5.24.2008 9:49am
Dave D. (mail):
...The L.A. Times is falling back on the old bamboozle to further their gay P.R. agenda. Is anyone surprised ? I think Oren is right in identifying the anti gay marriage feelings as fueling the Prop. 22 majority. Most Californians don't have a clue about judicial restraint, or lack of it.
..The gays and their elite P.R. machine think they can end run the voters and gain their goal by hook and crook. Numerous posters on this and other threads here have tortured poor reason to death trying to prove that this decision was legal. Failing that, they fall back on "hatred" and mobocracy as the reason they will lose their gains in November via Prop. 22.
...Until you change minds, you aren't going to win this battle. Changing a lifestyle characterized by promiscuity, public sex and in-your-face vulgarity might be a place to start. Justice George's ruling speaks to gays being deserved of dignity and respect. When San Francisco's gay freedom parade quits being a pornography based, sex saturated display of perversions, I'll consider changing my opinion of gay marriage.
5.24.2008 11:02am
Fitz (mail) (www):
Dale (writes)

"In fact, things are probably worse for ssm advocates than this polls suggests. If memory serves, in the state amendment battles so far, ssm fares worse by an average of about 10% in polls taken immediately before election day than it does in the balloting itself. If that's right, and if it holds in California, ssm advocates are in trouble unless at least 55% of voters in pre-election polls oppose the amendment."

"I can only speculate about the reason for the disparity between pre-election polls taken immediately before an election and actual elction day results. Other than bias in the polling question, two things come to mind. One is that people are reluctant to tell pollsters that they oppose something that has a whiff of civil rights in the popular media. The other is that intensity is higher among opponents of ssm than it is among supporters. This makes opponents of ssm more likely to vote and, when they do, more likely to reach the part of the ballot where the question is presented, rather than simply marking preferences at the top of the ballot for things like President, congressperson, Senator, etc., and then leaving the rest blank."

I think these are very important points when discussing polls on same-sex "marriage". It was the first series of point I was going to make regarding this post.

I would also add that Obama will drive much higher turnout among African Americans a group that suffers under a debilitated marriage culture already &shows overwhelming support in preserving marriage.

Their is also the Hispanic population that has grown considerably in both numbers &voter participation. As the poor &displaced they likewise have a serious interest in preserving our shared marriage culture &also show overwhelming support in preserving marriage.
5.24.2008 11:22am
Randy R. (mail):
On the other hand, the article states that when a ballot initiative comes up, the ones who want it passed usually want approval rates far above 50% in the initial polls. this is because, it explains, rates will likely come down as the campaign continues. So the fact that it is only slightly above 50% means that by Nov., the figure might very well be below that mark, and the bill may fail.

But then, this is a strange election year, and only a fool would have confidence in any predictions.
5.24.2008 12:38pm
Dave D. (mail):
..Keep dreamin'
5.24.2008 1:12pm
Oren:
If Hispanics stay home in large numbers then this ballot initiative might be competitive.
5.24.2008 2:06pm
Dave D. (mail):
...About half the California voters vote by mail. So staying home, or not voting for a candidate, doesn't proscibe voting for this proposition.
5.24.2008 2:19pm
Oren:
s/'stay home'/'sit out'/ $!

Happy now?
5.24.2008 2:33pm
Dave D. (mail):
....
5.24.2008 3:21pm
Parenthetical (mail):
Dale wrote:

If memory serves, in the state amendment battles so far, ssm fares worse by an average of about 10% in polls taken immediately before election day than it does in the balloting itself. If that's right, and if it holds in California, ssm advocates are in trouble unless at least 55% of voters in pre-election polls oppose the amendment.

On the whole your memory’s pretty good. That said, there were some notable exceptions (I believe that PPIC had the vote pretty much nailed in each of the three months prior to Prop. 22’s passage).

I wouldn’t put much stock in the L.A. Times poll for many of the reasons cited above. Even considering the source, the numbers are puzzling.

Separately, the 11% undecided will be cut in half—probably more—by election day. (While "undecided" is a telling statistic in opinion polls, it's meaningless in initiative voting.)

Even if this were a poll I’d credit, there’s too much in play to point to an outcome at this stage. Certainly the core of SSM opposition will likely turn out (and vote) in November. But, Obama supporters (assuming he’s on the ballot) are quite a wildcard for the SSM initiative.

What was clear even without a poll is that SSM proponents have an uphill struggle.
5.24.2008 5:25pm
whit:

that the chief support for this initiative isn't, as Whit claims, anti-judicial-activism but rather bread and butter anti-gay-marriage.

just for the record. i didn't say the CHIEF support for this amendment might be the anti-judicial activism crowd.

i said that "many more" iow an additional component than just the pro-traditional marriage people might also be the anti-judicial activist crowd. iow, if you have 1,000,000 people against it because their against it, but 200k piling on cause they hate the judicial activism stuff, that would be "many more" than just the initial million...

numbers used for illustrative purposes only

it's a subtle distinction and i am not sure i made my point clear
5.24.2008 9:10pm
Oren:
I have no problem with your amendment except the first clause. If the people want to, by initiative, allow same sex marriage, it is all right by me. However, since the current statute prohibiting gay marriage was passed by popular vote, under California law, that is the only way it can be repealed--and I would oppose allowing the Legislature to subvert that part of the California initiative process.
Feel free to amend my proposed amendment to make clear that initiatives take precedence over legislative action.
5.25.2008 4:17pm
whit:
"Feel free to amend my proposed amendment to make clear that initiatives take precedence over legislative action"

in WA state they do.

POWER TO THE PEOPLE!
5.27.2008 7:48pm
Chairm (mail):

the article states that when a ballot initiative comes up, the ones who want it passed usually want approval rates far above 50% in the initial polls. this is because, it explains, rates will likely come down as the campaign continues


The article is wrong. Pre-vote surveys typically overestimate the No side on state marriage manements. The results usually are far above 50% in favor of Yes. This pattern occured with Proposition 22 in California. Somehow the writer of the article about the upcoming amendment vote got the pattern backwards and also failed to use the most relevant example of that pattern.

Ask yourself why that error occured and why you, Randy, assumed it even plausible.
5.28.2008 12:40am
Parenthetical:
Chairm:

The article is wrong. Pre-vote surveys typically overestimate the No side on state marriage manements.

The survey data is obviously suspect. The article's general observation that support for controversial ballot measures typically erodes during the campaign is true. It was true even of Prop. 22.

As for state marriage amendments, they do tend to poll lower than the ultimate vote. From what I've seen (in vaguely credible polls), the "error" isn't really overestimating the No vote. The error tends to be in underestimating the Yes vote (and overestimating the undecideds).

Of course, there are exceptions. After my earlier post, I went back to reviewed a couple of polling organization's Prop. 22 predictions leading up to that election (March 2000). The Field Poll was off on both the "Yes" and "No" (however, the "No" response was within the margin of error). The Public Policy Institute of California (PPIC) was, as I suspected, very close to the actual results in each of the three months leading up to Prop.22's passage (well within the MoE).

Note that there's a new Field Poll that contradicts the L.A. Times results. I'm skeptical as to the degree of support for SSM in the Field results. Unlike the L.A. Times poll, at least the Field Poll was internally consistent.
5.28.2008 12:07pm